Thin Batter

On Monday, the Supreme Court issued its highly anticipated ruling in the Masterpiece Cake Shop “gay wedding cake” matter. The Court found in favor of the baker, reversing both the Colorado Civil Rights Commission’s ruling against the baker and the various lower court decisions upholding it. In the typical, modern “better to be first than to be accurate” fashion, people rushed opinions onto the Internet. It quickly became apparent that many of those opinions were based on nothing more than “Court Rules 7-2 In Favor of Baker” when the (accurate) descriptions of this ruling as being “narrow” were met with derision and mockery.

“7-2 is narrow? Ha ha, liberals gotta spin!” is the gist of countless comments I saw in the early commentary. However, it’s better to know exactly what a ruling says before spiking the football, because it is the ruling itself, not the margin by which it passed, that matters for future cases. It’s also worth noting, for those who insist on looking at the margin of victory, that two of the seven affirming justices only concurred on the procedural crux of the case, and suggested that under different circumstances they’d have voted differently.

Specifically, the Court found that the Commission improperly dismissed the baker’s religious beliefs as facetious, rather than genuine, and that it did not adhere to the requirement that government be neutral in matters of religious belief. This, Justice Kennedy wrote, was a violation of the Free Expression doctrine. In essence, the Court decided that the Commission mishandled the matter, and thus found in favor of the plaintiff. The Court’s ruling doesn’t appear to create any major precedent regarding the obligation of a business to serve customers, however.

This is a shame, but it should also have been expected. The Court isn’t prone to making big changes in the legal landscape unless it’s faced with a major dilemma or an injustice that demands it. This is the principle of stare decisis, i.e. precedent, that is at the core of our legal system. The Court will respect past decisions as much as possible in adjudicating new cases, which is a Good Thing most of the time. It preserves continuity, stability, and confidence. However, it also undermines the Court’s obligation to correct bad decisions of the past, and results in many lost opportunities.

This case is one of those.

One of the core tenets of liberty is that of free association. I am (supposed to be) free to associate with whomever I wish, and not associate with whomever I don’t wish, and there’s no exclusion or caveat with respect to economic association (i.e. business). Considered in a vacuum, the Masterpiece Bake Shop case should have been judged on that tenet alone. It wasn’t. In fact, freedom of association wasn’t even a consideration, because of the principle of “public accommodation.”

The Jim Crow era included a bunch of laws that infringed upon freedom of association. Specifically, these laws banned minorities from entering various places open to the public (shops, restaurants, theaters, hotels, etc), or restricted them to certain locations, or mandated they use certain doors, etc. The Civil Rights moment and Act remedied this infringement of individuals’ rights (and not just minorities – white shop owners were not allowed to associate either, i.e. have minorities as patrons) by establishing the public accommodation principle and codifying it into law. So, one infringement was replaced with another infringement, since business owners now had to associate with protected classes.

In my opinion, and as I’ve written before, this interventionist course of action was the right way to go. The Jim Crow laws could simply have been annulled en masse, via legislation or the Court, but the pervasiveness of the practice, the inevitable litigating and other sausage-making involved in unraveling those laws, and the time it would have taken to overcome the inertia and social pressures would have left millions in a continued state of discrimination for years or decades. Fixing rights violations and inducing societal shifts in the direction of liberty can take time, and can require multiple steps. Thus, public accommodation was a “lesser of two evils” in terms of its violation of individual rights, and it moved matters in the right direction. However, it still remains an infringement of freedom of association, and a society that has left the systemic segregation of Jim Crow in the dustbin of history should realize that it’s time to undo the lesser evil of forced association, as well.

Alas, it wasn’t meant to be. The Court upheld the public accommodation element of the Civil Rights Act via the Interstate Commerce Clause (unanimously, by the way), and, fact is, a big chunk of our society doesn’t care much for liberty when it goes against what they want to see happen. Many cannot stomach the idea that the weight of the law wouldn’t be available to smash a bigot (even though the free market, today, is quite good at doing so), so they have no problem infringing upon the rights of anyone who wants to open a business to the public. They’ll argue that the business could not exist but for the societal and physical infrastructure that surrounds it, but they don’t realize the faults or the peril of that argument, or that utility cannot be used to take someone’s rights away. Even many conservatives who bristled at the “bake that cake!” mantra aren’t ready to fully restore freedom of association.

Given precedent and continued public opinion, as a legal argument, free association was not likely to succeed. From what I’ve read, it wasn’t even argued that way, in any event.

Rather than freedom of association, it was argued on freedom of speech and of religion. It wasn’t decided on freedom of speech. It was only tangentially decided on freedom of religion, in that the decision was based on the Commission’s lack of impartiality and neutrality regarding the plaintiff’s religious beliefs and declarations.

As such, it was indeed a narrow ruling, and a (not unexpected) disappointment to those of us who saw an opportunity (admittedly, a long-shot opportunity) for the Court to make a substantive move in the direction of liberty. I’m happy for the ruling, but wish it went farther.

I am twice-retired, a former rocket engineer and a former small business owner. At the very least, it makes for interesting party conversation. I'm also a life-long libertarian, I engage in an expanse of entertainments, and I squabble for sport.

Nowadays, I spend a good bit of my time arguing politics and editing this website.